The article explores the question of when the government officials should in some cases be permitted to take measures that lessen individuals’ informational privacy – on the condition that they in some sense compensate for it “in kind” – either by (i) recreating this privacy in a different form or (ii) providing individuals with some other kind of legal protection which assures, for example, the information disclosed by the government will not be used to impose other kinds of harm.

My aim in the article is to make three points. First, I explore the ways in which the concept of a privacy substitute already plays a role in at least two areas of Fourth Amendment law:

The case law on “special needs” and administrative searches, which discusses when “constitutionally adequate substitute[s]” for a warrant (to use the language of New York v. Burger (1987)) or statutory privacy protections (such as those in the DNA act), may compensate for the absence of warrant- or other privacy safeguards and

cases holding that certain technologies which allow individuals to gather information from a private environment (such as a closed container) might be deemed “non-searches” if the technologies have built-in limitations assuring that they do not gather information beyond that information about the presence of contraband material or other information in which there is no “reasonable expectation of privacy” under the Fourth Amendment.

In each of these cases, I argue, courts have relied on certain assumptions – some of them problematic – about when certain kinds of statutory, administrative, or technological privacy protections may be substituted for more familiar constitutional privacy protections such as warrant requirements.

Second, I argue that, while such cases have sometimes set the bar too low for government searches, “privacy substitutes” of this sort can and should play a role in Fourth Amendment jurisprudence, and also perhaps in First Amendment law on anonymous speech and other constitutional privacy protections. In fact, I will argue, there are situations where technological developments may make such “privacy substitutions” not merely helpful to saving certain government measures from invalidation, but essential for replacing certain kinds of privacy safeguards that would otherwise fall victim to technological changes (such as advances in location tracking and video surveillance technology which undermine the features of the public environment individuals could previously rely upon to find privacy in public settings).

Third, focusing on the example of protections for anonymous speech in First Amendment law, I explore under what circumstances government should, in some cases, be permitted to replace privacy protections not with new kinds of privacy protection, but rather with other legal measures that serve the same end — for example, measures that provide the liberty, or sanctuary from retaliation, that privacy is sometimes relied upon for.

You all (y’all?) having likewise experienced the recursive nature of the exercise of writing a law review article, you will appreciate that, this year, for PLSC, I decided to challenge myself to a game of Digital Russian Roulette. I wondered what result Google’s predictive algorithm would generate as the theoretical foundation for an article that I would soon write on predictive computational techniques and their jurisprudential implications. Plugging the terms: ‘prediction’, ‘computation’, ‘law’ and ‘theory’ into Google, I promised myself that I would focus the article on whatever subject matter popped up when I clicked on the ‘I’m Feeling Lucky’ search feature.

So there I was, thanks to Google’s predictive algorithm, visiting a Wikipedia page on the jurisprudence of Oliver Wendell Holmes Jr. (Wikipedia, 2011). Google done good. Perhaps America’s most famous jurist, Holmes was clearly fascinated by the power of predictions and the predictive stance. So much so that he made prediction the centerpiece of his own prophecies regarding the future of legal education: ‘The object of our study, then, is prediction, the prediction of the incidence of the public force through the instrumentality of the courts’ (Holmes, 1897: 457).

Given his historical role in promoting the skill of prediction to aspiring lawyers and legal educators, one cannot help but wonder what Holmes might have thought of the proliferation of predictive technologies and probabilistic techniques currently under research and development within the legal domain. Would he have approved of the legal predictions generated by expert systems software that provide efficient, affordable, computerized legal advice as an alternative to human lawyers? What about the use of argument schemes and other machine learning techniques in the growing field of ‘artificial intelligence and the law’ (Prakken, 2006) seeking to make computers, rather than judges, the oracles of the law?

Although these were not live issues in Holmes’s time, contemporary legal theorists cannot easily ignore such questions. We are living in the kneecap of technology’s exponential growth curve, with a flight trajectory limited more by our imaginations than the physical constraints upon Moore’s Law. We are also knee-­‐deep in what some have called ‘the computational turn’ (Hildebrandt, 2011) wherein innovations in storage capacity, data aggregation techniques and cross-­‐contextual linkability enable new forms of idiopathic predictions. Opaque, anticipatory algorithms and social graphs allow inferences to be drawn about people and their preferences. These inferences may be accurate (or not), without our knowing exactly why.

One might say that our information society has swallowed whole Oliver Wendell Holmes Jr.’s predictive pill, except that our expansive social investment in predictive techniques extends well beyond the bounds of predicting, ‘what the courts will do in fact’ (Holmes, 1897: 457). What Holmes said more than a century and a decade ago about the ‘body of reports, of treatises, and of statutes in the United States and in England, extending back for six hundred years, and now increasing annually by hundreds’ (Holmes, 1897: 457) can now be said of the entire global trade in personal information, fueled by emerging techniques in computer and information science, such as KDD (knowledge discovery in databases):

In these sibylline leaves are gathered the scattered prophecies of the past upon the cases in which the axe will fall. These are what properly have been called the oracles of the law. Far the most important and pretty nearly the whole meaning of every new effort of … thought is to make these prophecies more precise, and to generalize them into a thoroughly connected system. (Homes,1897: 457)

As described in my article, the computational axe has fallen many times already and will continue to fall.

My article examines the path of law after the computational turn. Inspired by Holmes’s use of prediction to better understand the fabric of law and social change, I suggest that his predictive stance (the famous “bad man” theory) is also a useful heuristic device for understanding and evaluating the predictive technologies currently embraced by public-­‐ and private-­‐sector institutions worldwide. I argue that today’s predictive technologies threaten privacy and due process. My concern is that the perception of increased efficiency and reliability in the use of predictive technologies might be seen as the justification for a fundamental jurisprudential shift from our current ex post facto systems of penalties and punishments to ex ante preventative measures premised on social sorting, increasingly adopted across various sectors of society.

This jurisprudential shift, I argue, could significantly undermine the value-­‐based approach that underlies the ‘reasonable expectation of privacy’ standard adopted by common law courts, privacy and data commissioners and an array of other decision makers. More fundamentally, it could alter the path of law, significantly undermining core presumptions built into the fabric of today’s retributive and restorative models of social justice, many of which would be preempted by tomorrow’s actuarial justice.

Holmes’s predictive approach was meant to shed light on the nature of law by shifting law’s standpoint to the perspective of everyday citizens who are subject to the law. Preemptive approaches enabled by the computational turn will obfuscate the citizen’s legal standpoint championed by Holmes. I warn that preemptive approaches have the potential to alter the very nature of law without justification, undermining many core legal presumptions and other fundamental commitments.

In the article, I propose that the unrecognized genius in Holmes’s jurisprudence is his (self-­‐fulfilling) prophecy, more than a century ago, that law would become one of a series of businesses focused on prediction and the management of risk. I suggest that his famous speech, The Path of Law, lays a path not only for future lawyers but also for data scientists and other information professionals. The article commences with an examination of Holmes’s predictive theory. I articulate what I take to be his central contribution—that to understand prediction, one must come to acknowledge, understand and account for the point of view from which it is made. An appreciation of Holmes’s “predictive stance” allows for comparisons with the standpoints of today’s prediction industries. I go on to discuss these industries, attempting to locate potential harms generated by the prediction business associated with the computational turn. These harms are more easily grasped through a deeper investigation of prediction, wherein I argue that when prediction is understood in the broader context of risk, it is readily connected to the idea of preemption of harm. I suggest that the rapid increase in technologies of prediction and preemption go hand in hand, and I demonstrate how their broad acceptance could undermine the normative foundations of the ‘reasonable expectations of privacy’ standard, and show how it also fosters a growing social temptation to adopt a philosophy of preemption, and demonstrate how this could also have a significant impact on our fundamental commitments to due process.

Threats to, and the protection of individual privacy have been the subject of public and scholarly debate for some time. This debate focuses on the significance of privacy for individual persons: How is a right to privacy justified? How are privacy, freedom, dignity and autonomy related? How important is the protection of individual privacy in a liberal constitutional state? Recently, a novel perspective has emerged in the debate on privacy. A number of scholars have argued that the significance of privacy goes beyond the individuals’ interests it protects. By protecting individual privacy, we protect not only the interests of individuals, but also the interests of society. Besides its value for individuals, privacy has also an irreducibly social value.

We intend to show that only by analyzing and conceptualizing the social value of privacy can we depart from the normative problems confronting us when we focus on the protection of individual (informational) privacy. This set of normative problems finds expression in a conflict often sworn between individuals and society: individual interests in privacy (and freedom) are directly opposed to societal interests in safety and protection from terrorism, as well as efficient administration or effective healthcare. The impression then arises that the one – i.e. the protection of privacy – needs to be taken less seriously in order to satisfy better the other – i.e. societal interests. The fact that this description of the constellation between individual persons and their social and societal contexts is problematic and misleading only becomes clear when we analyse the social value of privacy.

We will proceed as follows: In a first step, we shall address in full the discussion centering around a right to individual privacy, as well as the embedding of this discussion in liberal theory (I). We shall then explain the different ways in which the social value of privacy can be conceptualized, as well as the attempts made at this to date which are available in the literature (II). This leads us to a distinction between three paradigmatic types of relationship and social practices which are each reliant on the protection of – different types of – privacy, and discuss each one in turn: intimate relationships (between family members or friends) (III), professional relationships (IV) and interaction between strangers (V). In a final step we shall then analyse the different, thus distinguished forms of the social value of privacy; how exactly these different forms relate to one another; and what this means for potential conflicts between the interests of society and the protection of individual privacy (VI).

Youth are allowed mistakes in greater measure than adults. Today, however, because of the digital medium, youthful exuberance and experiment, intellectual curiosity, and teenage rebellion may be subject to the prying eyes of authorities, both governmental and private, both contemporaneously and far into the future. The disciplinary effects of such possible future ramifications may be graver today than ever before. The consequences may be particularly severe for women, given societal practices related to sexuality. What might the law do to protect youthfulness in youth?